Venues

This week I've been attending/observing a training session for lawyer/mediator/arbitrators offered by Cornell University's Industrial and Labor Relations (ILR) school. The course is called "Employment Law Mediator Training," and it has brought home to me how specialized some areas of ADR work are, and how little borrowing of ideas about third party work there can be across venues.

The venue in which the class is working, and hopes to work professionally, is mediation in employment law, where attorneys or HR directors make decisions about which mediator to hire, and where operating through caucus and shuttle diplomacy is the norm. There are two mantras for the week: "It's always about the money," and "If you don't settle cases you'll never get hired again." Both are probably quite apropos for the venue in which the class is operating, but it is notable that both are antithetical to much of what is taught about ADR outside the employment law arena, where it is often not at all about the money, and where it is an article of faith that not getting a deal is not a sign of failure. As my tuition for being allowed to sit in on the class, I have been asked to observe some of the mock mediations conducted by the students and offer comments about their performance. At one point, after I had said my piece, the instructor commented that I obviously came from a more "pure" ADR background than she. Aside from the fact that I don't think anyone has ever described me as "pure," I think it reveals a perception that may be common to lawyers who do employment law work: all the warm fuzzy ADR talk about consensual outcomes and interest based discussions is nice, but too academic to be of any use. It wouldn't surprise me, but it might surprise some of the employment law mediators, to find that parties and practitioners in other venues would find their directive, caucus based approach too narrow to be of any use. I've always considered myself to be eclectic in approach - paraphrasing one of my virtual mentors, Kenneth Burke, I'll use anything I can, from anywhere I can find it, to help me figure out what's going on and what to do about it. Given that attitude, I acknowledge the utility and usefulness of the methods that are used in employment law mediation, but I wish trainers and teachers could find a way to cross the lines created by specific venues to recognize and discuss the usefulness of techniques and approaches from multiple venues. It seems to me that employment law mediators could learn a couple of things from the rest of the ADR world - I know that in a couple of cases I have observed this week there were some very non-monetary items that could have had a huge impact on a party's willingness to settle - and the rest of the ADR world could learn a bit from the employment law mediators about how to approach entrenched parties and zero sum situations.

Another topic that came up during the class has me thinking about the advice we give students who are trying to break in to the dispute resolution field. The message this week has been that it's nice to network with your peers, but you really need to network with the people who make decisions about which mediator, if any, will be hired. Probably good advice, and advice that I probably have not passed along to students clearly enough.